United States v. Gil

204 F.3d 1347

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 3, 2000
• Docket: 98-5822
• Status: Published

Opinion

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAR 03 2000 ________________________ THOMAS K. KAHN CLERK No. 98-5822 ________________________

D. C. Docket No. 95-00335-CR-FAM

UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

LOURDES GIL, Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________ (March 3, 2000)

Before TJOFLAT, Circuit Judge, FAY, Senior Circuit Judge, and HANCOCK*, Senior District Judge.

PER CURIAM:

Appellant, Lourdes Gil, was convicted of one count of conspiracy to possess

cocaine with intent to distribute, in violation of 21 U.S.C. § 846. Ms. Gil was

* Honorable James H. Hancock, Senior U.S. District Judge for the Northern District of Alabama, sitting by designation. sentenced to a term of one hundred and twenty months incarceration, followed by five

years of supervised release. Ms. Gil challenges her conviction, arguing that there was

insufficient evidence to support a conspiracy conviction. Additionally, Ms. Gil argues

that the trial court erred when it denied her motion to suppress, excluded the testimony

of a character witness, and admitted a baby shower invitation found in Ms. Gil’s

vehicle as evidence of Ms. Gil’s relationship to a co-defendant. After a thorough

review of the record, we have determined that there was sufficient evidence to support

Ms. Gil’s conviction and that the trial court did not err when it denied Ms. Gil’s

motion to suppress, excluded the character witness, and admitted the baby shower

invitation. Therefore, we AFFIRM.

I Factual Background

Ms. Gil’s husband, Julian Gil, had been meeting with a confidential informant

for several months when they agreed that Mr. Gil would purchase twenty kilograms

of cocaine. On May 4, 1995, Mr. Gil obtained the first five kilograms of cocaine from

the informant and took the cocaine back to the house he shared with Ms. Gil to be

tested. Approximately fifteen minutes after Mr. Gil and Jorge Vento, a co-

conspirator, entered the residence, federal agents observed Ms. Gil leaving the

residence; she was carrying plastic bags large enough to contain either cocaine or

2 money. Ms. Gil placed the bags in a yellow Cadillac and drove away from the

residence.

Three federal agents, driving in separate vehicles, followed Ms. Gil’s Cadillac

and subsequently pulled her over several blocks from the house at approximately 5:15

p.m. After Ms. Gil voluntarily exited the vehicle, the agents notified Ms. Gil that they

were conducting a narcotics investigation and asked her whether they could search her

car, to which she responded affirmatively. The agents searched the car and discovered

two plastic bags, one on the front floorboard and one on the back floorboard. The bag

in the front of the car contained grapefruits and oranges; the bag in the back of the car

contained $12,500 of United States currency wrapped with rubber bands. When an

agent asked Ms. Gil who the money belonged to, she stated she did not know.

After securing the vehicle and leaving it at the side of the road, the agents

handcuffed Ms. Gil and placed her inside Agent Faiella’s vehicle. Ms. Gil’s person

was not searched. Then, two agents, with Ms. Gil in the vehicle, returned to the area

of the Gil residence, but did not return to the residence itself until after the residence

was secured. In the vehicle, on the way back to the residence, Agent Faiella again

asked Ms. Gil if she knew who the money belonged to; at that time she stated the

money belonged to her husband, Julian, who told her to put it in the car. Once the Gil

3 residence was secured, Ms. Gil was returned to the residence and at 6:30 p.m. Ms. Gil

was formally arrested and transported to the DEA office.

II Discussion

A. Sufficiency of the Evidence

We review the sufficiency of the evidence de novo. See United States v. Keller,

916 F.2d 628, 632 (11th Cir. 1990). To prove Ms. Gil guilty of conspiracy, the

government was required to prove (1) that an agreement existed between Ms. Gil and

one or more other persons, (2) to engage in unlawful activity, in this case to distribute

cocaine. See United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). After

considering all of the evidence in the light most favorable to the government, we are

convinced that a reasonable jury believed beyond a reasonable doubt that Ms. Gil was

aware that Mr. Gil intended to distribute cocaine and that Ms. Gil engaged in activity

designed to assist Mr. Gil with that plan.

First, to prove that an agreement existed between Ms. Gil and her co-

conspirators, the government must prove that Ms. Gil had knowledge of the intent to

distribute cocaine. See id. The government presented evidence indicating that Ms.

Gil was present when the cocaine was brought into her home and that due to the size

and layout of the house it would have been impossible for Ms. Gil to leave the house

without knowledge that the cocaine was being tested in the kitchen. Additionally, the

4 government presented evidence that Ms. Gil’s arms, fingers, and nail beds were

contaminated with Clue Spray, a substance used to coat the bag of cocaine that is only

visible under ultraviolet light. While it would have been possible for Ms. Gil to

become contaminated secondarily from touching her husband, who directly touched

the bag of cocaine, the jury could have properly found that Ms. Gil became

contaminated directly from touching the bag itself. Therefore, the Government

presented sufficient evidence of Ms. Gil’s knowledge of the cocaine so that the jury

could properly conclude that Ms. Gil was aware that her co-conspirators intended to

distribute cocaine.

In addition to knowledge of the intent to distribute the cocaine, a conspiracy

conviction requires that Ms. Gil actively participated in furthering the plan. See id.

The Government proffered, and the jury accepted, the inference that Ms. Gil

participated in furthering the conspiracy to distribute the cocaine by removing a bag

of money from the house before the cocaine buyers arrived. Ms. Gil left the house

shortly after the cocaine arrived with a bag filled with $12,500 in cash, wrapped in

rubber bands. The Government surmised in closing argument that Ms. Gil “played

an intricate part in this conspiracy, not a big part. She didn’t go out and get the

cocaine and bring it back. She didn’t distribute it, but she moved money out of that

house to prepare the house for the transaction.” Although Ms. Gil’s participation in

5 the conspiracy may have been slight by comparison to the actions of her co-

conspirators, her participation was sufficient enough for a reasonable jury to find her

guilty of conspiracy, as the jury did in this case. Therefore, we hold that a reasonably

jury could and did find Ms. Gil guilty of conspiracy to possess cocaine with intent to

distribute, in violation of 21 U.S.C. § 846.

B. Motion to Suppress

We review the district court’s denial of Ms. Gil’s motion to suppress under a

mixed standard of review. We review the district court’s findings of fact under the

clearly erroneous standard and the district court’s application of law to those facts de

novo. See United States v. Blackmon, 66 F.3d 1572, 1577 (11th Cir. 1995). In this

appeal, Ms. Gil argues that she was arrested without probable cause when she was

handcuffed in the back of a police car and that the fruits of that “arrest” should be

suppressed. The district court denied her motion to suppress based upon a finding that

the Government had reasonable suspicion to stop Ms. Gil’s car under Terry v. Ohio,

392 U.S. 1 (1968)1 and that her detention did not ripen into a full arrest until after Ms.

Gil’s house was searched and the agents obtained probable cause. After reviewing

the circumstances surrounding Ms. Gil’s detention, we agree that Ms. Gil was

1 Ms. Gil does not challenge the district court’s determination that the initial stop was an appropriate Terry stop.

6 appropriately detained for seventy-five minutes under Terry and not arrested until

after the agents searched the house, at which time the agents had probable cause to

arrest Ms. Gil.2 Therefore, we affirm the district court’s denial of Ms. Gil’s motion

to suppress.

Ms. Gil does not challenge the propriety of her initial detention; her challenge

is to the length and circumstances of her detention. Ms. Gil argues that because she

was detained for approximately seventy-five minutes and placed in handcuffs in a

police car, her detention exceeded that allowed by Terry and ripened into a full scale

arrest. In evaluating the reasonableness of an investigatory stop, we must examine

whether the stop “was reasonably related in scope to the circumstances which justified

the interference in the first place.” United States v. Sharpe, 470 U.S. 675, 685 (1985).

We consider the “totality of the circumstances.” United States v. Simmons, 172 F.3d

775, 778 (11th Cir. 1999). There are several issues relevant to this analysis,

“including the law enforcement purposes served by the detention, the diligence with

2 Although we need not decide this issue because we hold that the Terry stop was reasonable, the facts support a finding that could have been made by the trial court that the police had probable cause to arrest Ms. Gil at the time that they discovered the bag containing $12,500 in her car. After viewing the bag containing the money, it is clear to us that Ms. Gil must have known that the bag contained a large quantity of cash. When this knowledge is combined with the fact that Ms. Gil left the house fifteen minutes after the cocaine arrived, we conclude that there was probable cause to arrest Ms. Gil before the house was searched.

7 which the police pursue the investigation, the scope and intrusiveness of the detention,

and the duration of the detention.” United States v. Hardy, 855 F.2d 753, 759 (11th

Cir. 1998) (citations omitted). We will consider each issue in turn.

Considering first the law enforcement purpose served by the detention of Ms.

Gil, this Court has stated that the most important factor “is whether the police detained

[the defendant] to pursue a method of investigation that was likely to confirm or dispel

their suspicions quickly, and with a minimum of interference.” Hardy, 855 F.2d at

759. Here, the agents detained Ms. Gil while they pursued their investigation of the

Gil residence. It was necessary for the agents to detain Ms. Gil to prevent her from

jeopardizing their investigation of the residence. Ms. Gil was detained for only as

long as it was necessary to complete their investigation of the Gil residence. This fact

also supports the second factor we must consider – “the diligence of the police in

pursuing the investigation.” Id. at 759-60. The police were diligent in their

investigation of the residence and did not detain Ms. Gil without formally arresting

her for any amount of time longer than it was necessary to complete that investigation.

Finally, we must consider the “actual scope and intensity of the intrusion.” Id.

at 760. Here, Ms. Gil was handcuffed and placed in the back of a police car; although

this is a severe form of intrusion, we conclude its necessity was supported by the

circumstances. Ms. Gil was not searched at the scene because there was not a female

8 officer available to conduct that search; thus, the agents did not know whether Ms. Gil

was armed. Ms. Gil was placed into a vehicle with two officers and there is no

evidence in the record to indicate whether there was a cage in that vehicle to protect

the officers from Ms. Gil in case she was armed. Therefore, to maintain the safety of

the officers and the ongoing investigation of the residence, handcuffing Ms. Gil and

detaining her in the back of the police car was reasonable. After considering the

totality of the circumstances surrounding Ms. Gil’s detention, including the length of

time Ms. Gil was detained before she was arrested, we hold that Ms. Gil’s detention

was reasonable and affirm the district court’s denial of Ms. Gil’s motion to suppress.

C. Exclusion of Character Witness Evidence

Ms. Gil sought to admit the testimony of a purported character witness, Frank

Alam. After brief questioning by defense counsel it became clear that Mr. Alam did

not have contact with Ms. Gil in 1995, the year she was arrested. Mr. Alam testified

that he lived in Cuba in 1995 and did not move to the United States until early 1998,

but that he had known Ms. Gil’s family for twenty years. The district court excluded

Mr. Alam’s testimony because Mr. Alam did not know Ms. Gil at the time of the

offense and the trial judge believed that Mr. Alam did not have an adequate basis for

expressing an opinion as to Ms. Gil’s character. We will not overturn the district

9 court’s decision to exclude this evidence absent a clear showing of abuse of discretion.

See United States v. Cannon, 41 F.3d 1462, 1465 (11th Cir. 1995). While the district

court acknowledged that courts are more flexible regarding the admissibility of

opinion testimony, such as this, as opposed to reputation testimony, see United States

v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982), the court properly distinguished

Watson as addressing the credibility of witness testimony, not the character of a

defendant. Here, the trial judge did not abuse his discretion when he determined that

the proffered character witness had an inadequate basis for expressing an opinion as

to Ms. Gil’s character.

D. Admission of Baby Shower Invitation

Over objection, the Government introduced into evidence a baby shower

invitation found in Ms. Gil’s car from Caridad Vento, the wife of Mr. Vento, one of

Ms. Gil’s co-conspirators. The Government offered the invitation to prove that a

relationship existed between Ms. Gil and Mr. Vento. The trial judge determined that

the baby shower invitation was relevant; any inferences drawn from the existence of

the baby shower invitation in Ms. Gil’s vehicle are left to the fact-finder. The trial

judge did not abuse his discretion when he admitted the invitation.

IV Conclusion

10 The Government presented sufficient evidence to support Ms. Gil’s conviction.

Additionally, the district court did not err when it denied Ms. Gil’s motion to

suppress, and did not abuse its discretion when it excluded Ms. Gil’s character witness

and admitted a baby shower invitation found in Ms. Gil’s vehicle. Therefore, the

judgment of the district court is AFFIRMED.